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Court finds Virginia school's transgender bathroom rule discriminatory

Posted April 19
Updated April 20

— A policy barring a transgender student from using the boys' restrooms at his Virginia high school is discriminatory, a federal appeals court ruled Tuesday.

In a case closely watched by public schools and transgender-rights activists across the country, a three-judge panel of the 4th U.S. Circuit Court of Appeals overturned a federal judge's decision rejecting Gloucester High School student Gavin Grimm's sex discrimination claim and ordered the lower court to hear the case.

Transgender rights have become the latest civil rights battleground issue across the country after the Supreme Court laid to rest the gay marriage debate when it ruled last year that same-sex couples had the right to marry. The issue was thrust further into public consciousness in 2015 when Olympic athlete and reality TV star Bruce Jenner disclosed his transgender identity and name change to Caitlyn Jenner.

North Carolina, which faces a lawsuit challenging a new state law requiring transgender people to use the public bathroom that corresponds to the sex listed on their birth certificate, is part of the 4th Circuit and must follow rulings issued by the court. The sweeping law, commonly referred to as House Bill 2, also barred cities from passing anti-discrimination ordinances that provide protections for gay and transgender people, which has prompted a national backlash. Businesses and politicians have announced boycotts of North Carolina, and legal challenges ensure that the wedge issue will dominate Republican Gov. Pat McCrory's re-election campaign.

"We have to evaluate the impact of this court ruling on existing legislation, on existing policy that we have throughout North Carolina," McCrory said. "The Federal courts have taken on this issue with pretty aggressive action and it will cause quite a stir in this nation on all sides."

McCrory disagreed with the ruling, which he called "pretty aggressive action," and said his lawyers were reviewing it. Schools should be allowed to set their own bathroom policies, he said, including making special arrangements as needed for transgender students.

"This Virginia ruling has major ramifications on the ever-changing and very fast changing of cultural norms, especially in our public school systems," he said. "This is going to be a very interesting, not just a North Carolina discussion, this is now even more of a national discussion."

Senate President Pro Tem Phil Berger angrily denounced the ruling, saying it would complete a "radical social re-engineering of our society by forcing middle school-aged girls to share school locker rooms with boys."

"House Bill 2 was our effort to stop this insanity, and I hope this proves the bathroom safety bill has nothing to do with discrimination and everything to do with protecting women's privacy and keeping men out of girls' bathrooms," Berger, R-Rockingham, said in a statement.

House Speaker Tim Moore was more measured in his response: "The panel's reasoning is unsound at best, and this argument is far from over in the courts and in the court of public opinion."

Meanwhile, Burley Mitchell, a former chief justice of the North Carolina Supreme Court, said he thinks the ruling will have limited impact.

"The decision doesn’t appear to be based on the Constitution. Instead, it’s based on an interpretation of Title IX," Mitchell said, referring to the federal education gender-equity law. "At most, the ruling would apply to public schools."

In a statement, the North Carolina Values Coalition claimed that the court ruling ignored the clear language of Title IX "and instead substituted it's own definition of sex for that of the U.S. Congress."

"Students from all walks of life find it deeply humiliating and offensive to be forced to share intimate facilities with the opposite sex, but unfortunately the Court did not consider these harms or the voices of these children," the statement said.

North Carolina lawmakers have signaled that they have no intention of repealing the bathroom law when they reconvene for their 2016 legislative session next week, and McCrory is more focused on reinstating the rights of workers to sue for job discrimination in state court, which was a protection wiped out by House Bill 2.

Chris Brook, legal director for the North Carolina chapter of the American Civil Liberties Union, which has challenged House Bill 2 in court, said the 4th Circuit ruling can only help their case.

"It puts a lot of wind at our back. It underlines the argument that we've been making from the outset, which is that recipients of federal education funds can't be discriminating against transgender students," Brook said. "We are going to be holding this opinion up high when we go into court to challenge this portion of House Bill 2."

Chris Sgro, executive director of LGBT advocacy group Equality NC, said the ruling "makes clear that anti-transgender legislation like North Carolina's House Bill 2 are unconstitutional and misguided," and he again called for it to be repealed.

Grimm, 16, was born female but identifies as male. He was allowed to use the boys' restrooms at the school for several weeks in 2014. But after some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.

Grimm called the policy stigmatizing. School officials said the policy respects the privacy of all students.

Grimm's parents helped him legally change his name, and a psychologist diagnosed him with gender dysphoria, characterized by stress stemming from conflict between one's gender identity and assigned sex at birth. Grimm began hormone treatment to deepen his voice and give him a more masculine appearance.

The U.S. Justice Department filed a "statement of interest" in Grimm's case in July, declaring that failure to allow transgender students to use the restroom that corresponds with their gender identity amounts to sex discrimination.

In a dissenting opinion, Judge Paul Niemeyer said the court's opinion "overrules custom, culture, and the very demands inherent in human nature for privacy and safety."

"This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes," Niemeyer wrote.

Other states in the 4th Circuit are Maryland, West Virginia and South Carolina.

48 Comments

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  • Sam Nada Apr 20, 2016
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    No, as I said I was referring to the GA and Governor. I'm not a lawyer, but it appears to me Charlotte's ordinance is consistent, or very close to consistent, with the position federal courts are likely to take. As I understand it there's also legislation being proposed in Congress to make discrimination on the basis of sex include gender identity. Once that clarification in federal law is made, like what happened with same-sex marriage, all these State laws attempting to establish legal discrimination will be history. The sooner the better.

    “Republicans are the party that says government doesn’t work, and then they get elected and prove it.” - P.J. O’Rourke

  • Steve Clark Apr 20, 2016
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    Sam, are you talking about the Charlotte town council? ... seems like your comments could apply to them as well. Honestly, it seems like the majority of North Carolinians think that both laws were bad, and unneeded.

  • Steve Clark Apr 20, 2016
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    Well, since no one else has mentioned it... the three judges were Paul Neimeyer (Aug '90, GW Bush appointee), Andre Davis (Apr '09, B Obama appointee), Henry Floyd (Jan '11 B Obama appointee).... and the decision was 2-1...

    Our government has devolved into a system where our legislative branch makes laws that the executive branch refuses to enforce... then the executive branch appoints judges to 'non-fireable' positions based on their political leanings... then every law the executive branch doesn't like, gets decided by a court... that the executive branch has staffed. Our three branches of 'co-equal' government no longer exists.

  • Sam Nada Apr 20, 2016
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    Just for reference sake:

    http://www.firstpeople.us/articles/the-two-spirit-people-of-indigenous-north-americans.html

    Good luck using that to inform current American culture, particularly in the South.

  • Sam Nada Apr 20, 2016
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    The GOP in the GA, and the governor, absolutely showed their true natures during this entire process. Ill conceived, total lack of considered deliberation, politically motivated opportunism to ram through unrelated draconian legislation, completely predictable negative backlash and economic consequences, further destroying the national reputation of the State, and the whole thing likely to be overturned. Ignorance and ineptitude in full bloom. It's difficult to imagine how they could have handled it any worse.

  • Ron Coleman Apr 20, 2016
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    You avoided the question. How would your family handle it in 1630's America. Just so you know I am of Native American decent and my family was here long before 1630.

  • Amanda Townsend Apr 20, 2016
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    Definitely agree. What a waste of $40K + whatever miscellaneous expenses were incurred.

  • Chris Cole Apr 20, 2016
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    All of this is definitely distracting from the fact that the Republicans in the GA felt the need to waste taxpayer money on a special session for this. They need to stop touting that they're fiscally responsible when they pull stuff like this.

  • Christian Knott Apr 20, 2016
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    Your poorly written screed in favor of bigotry and discrimination really has no importance to the LAW and to the rights of others. If you are so dense that you can't understand and appreciate gender fluidity, it certainly isn't possible to properly educate you within the confines of an online news forum. People said our country was in shambles when women were allowed to vote, they said it was in shambles when segregation ended. Funny, there are always people who hate progress.

  • Ron Coleman Apr 20, 2016
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    I wonder how your family members would have handled it back in 1630. It is plain and simply, if you have male parts use a male restroom and if you have female parts use a female bathroom. The rights and safety of our young children are much more important than caving in to a group of people that have a short circuit in their head. It is no surprise that our country is in such shambles, people have completely lost their moral values and being sure not to hurt someones delicate sensitive feelings has become the politically correct norm. I am glad that I am near the end of my life cycle because I don't believe America as a country will survive another 50 years and that makes me sad.

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